RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02132
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150107
SEPARATION DATE:  20021130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0613/Construction Wireman) medically separated for low back pain (LBP).  This condition could not be adequately rehabilitated to meet the Military Occupational Specialty requirements or satisfy physical fitness standards.  The CI was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “mild lumbar degenerative disc disease” (DDD) and “low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E; no other conditions were submitted by the MEB.  The PEB adjudicated “low back pain” as unfitting, rated 10%.  The remaining lumbar DDD condition was determined to be Category II (conditions that contribute to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition (including lumbar DDD) is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20021003	VA - (19 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5295	10%	Back Condition	5243	20%	20040706	
Mild Lumbar DDD	Cat II	No VA Entry	
No Additional MEB/PEB Entries in Scope	No Additional VA Entries in Scope	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20041122.

ANALYSIS SUMMARY:  The Board directs attention to its rating recommendation based on the above evidence; noting that the CI was separated on 30 November2002, a year prior to a significant change in the VA Schedule for Rating Disabilities (VASRD) codes and criteria for the spine and during the transition period when the interim spine rules were in effect.  The older codes and criteria were applied to rating by the PEB, and the new codes and criteria were utilized for the VA ratings.  The Board’s recommendation, IAW DoDI 6040.44, must be premised on the VASRD in effect at separation although, the VA exam evidence (upon which the VA ratings were based) remains probative to the Board’s recommendation under the applicable VASRD criteria.  
The 2002 VASRD coding and rating standards for the spine (effective at separation) differ from the current §4.71a general rating formula for the spine (effective for VA rating) in that they require more subjective judgment as to level  of disability.

Low Back Condition.  Although the CI had previously been treated for LBP, the back symptoms increased and continued without resolution after a motor vehicle accident on 8 February 2001.  The CI was treated with quarters once for 24 hours, duty limitations, medications, physical therapy without adequate improvement over the next year.  A magnetic resonance imaging showed DDD at L3-4.  The report is not in evidence, but it was cited in other clinical notes.  The CI underwent a series of epidural steroid injections with temporary reduction in pain and also an injection of the facet joints (part of the spine) which was without benefit.  The range-of-motion (ROM) was noted as limited by pain on some notes, but the primary care note 10 months prior to separation noted full ROM.  It was the most proximate note to separation.  The CI was motivated to remain in the Marine Corps, but was not able to meet duty requirements and was referred to a MEB.  The narrative summary (NARSUM) was dated 2 July 2002 and dictated by the treating neurosurgeon.  The CI reported worsening pain, but denied radiation.  On examination, the CI had normal strength and reflexes with an aggravation of pain with flexion and extension.  No comment was made on spasm, ROM, or gait implying that there was no significant abnormality.  At the MEB examination 2 weeks later, the CI reported chronic LBP.  The examiner noted tenderness over L4-5 without further detail.  

At the VA Compensation and Pension (C&P) examination performed on 29 April 2003, 5 months after separation, the CI reported limitations in activity secondary to the LBP.  The CI was working driving a forklift without difficulty from the back condition.  The CI denied missing any work secondary to the back condition.  On examination, the gait, posture and stance were normal.  The CI was observed no to change positions (from discomfort) during the examination and did not appear uncomfortable.  The CI transferred easily from standing to the examination table and was able to rise to a sitting position using the abdominal muscles (implying normal or near normal back function).  Slight over-reaction to pain was observed as was one sign of non-organic pain.  The ROM was accomplished with two inclinometers vice a goniometer and the measurements were for lumbosacral ROM rather than thoracolumbar motion.  The lumbosacral flexion was 80 degrees and extension 35; the examiner noted that the lumbar flexion was 45 degrees.  The motion was limited by pain.  A VA C&P examination 19 months after separation was limited to 40 degrees flexion for the lumbar spine.  Again, thoracolumbar measurements were not recorded.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB used an analogous code for lumbosacral strain (5299-5295) and rated the back at 10% under the old VASRD criteria.  The VA rated the back at 20% using the code 5243 (intervertebral disc syndrome) under the current VASRD.  It cited the restriction in lumbar motion using an examination 19 months after separation and, therefore, of reduced probative value at separation.  The Board observed that this rating would have been appropriate for a thoracolumbar measurement of 45 degrees under the new rules.  The rater apparently did not request a correctly obtained set of measurements for either C&P.  The action officer observed that a limitation in thoracolumbar flexion of 45 degrees is not consistent with the remainder of the examination including a normal gait and ease getting on and off the examination table.  Painful motion was apparent on both the NARSUM and C&P examination; otherwise both were relatively unremarkable with a normal neurological examination and normal function as demonstrated by the gait and ease of movement on the latter evaluation.  The Board considered the code options available, but found no route to a rating higher that the 10% adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board surmised from the record or PEB ruling in this case that no prerogatives outside the VASRD were exercised.  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends no re-characterization of the disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140512, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 18 May 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC

			  XXXXXXXXXXXXXXX
	     		  Assistant General Counsel
			  (Manpower & Reserve Affairs)